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Hayden defends legality of NSA spying


WASHINGTON -- CIA director nominee Gen. Michael V. Hayden staunchly defended the Bush administration's warrantless surveillance program yesterday, telling senators considering his confirmation that he believes the effort is legal and carefully crafted to protect civil liberties, while acknowledging that the privacy of American citizens is a "constant" concern.

Hayden, who ran the National Security Agency when the surveillance program began, underwent more than six hours of public questioning by members of the Senate Intelligence Committee on subjects that included NSA spying and the CIA's ability to provide accurate information.

Mixing sports metaphors and intelligence jargon, Hayden - now deputy director of national intelligence - temporarily deflected the toughest questions by saying that he would answer them during the committee's closed session, which followed the open hearing and ran into the evening.

Despite the lingering concerns of some senators, Hayden's path to confirmation is expected to be smooth. Kansas Sen. Pat Roberts, the Republican chairman of the panel, said yesterday that he hoped to hold a committee vote on the nomination early next week. That could allow the full Senate to confirm Hayden before the weeklong recess for Memorial Day.

When Hayden sat down at the witness table yesterday, he essentially had three audiences, the senators, the public and CIA employees.

For the lawmakers, he emphasized that he would share more information with the committee and be an independent voice in fights with the Pentagon.

For the public, Hayden offered repeated assurances that the NSA program was focused on rooting out terrorists, not on rifling through information on ordinary Americans.

Perhaps his most important audience was across the river at the CIA's campus in Langley, Va.

Seeking to allay fears there that he might dismantle some parts of the agency, he praised each of its three main divisions, the clandestine service, analysis and science and technology. And he laid out his vision, vowing to reassert the CIA as the nation's pre-eminent intelligence agency.

Under his leadership, he promised, the agency would require accountability. But workers deserve "not to have every action analyzed, second-guessed and criticized on the front pages of newspapers," he said.

"CIA needs to get out of the news - as source or subject - and focus on protecting the American people," Hayden said.

Before he turned to his questions for Hayden, Roberts fired off a warning.

"It is important to be clear: Not having your actions second-guessed is earned, not deserved," Roberts said. "This committee simply cannot accept intelligence assessments at face value."

Hayden said that as director, he would encourage alternative views and rigorous analysis to ensure that policymakers get the best possible intelligence from the agency. But he said that probably would mean less certainty in some intelligence evaluations.

"We'll do our best to tell you what we know and why we think it, and where we're doubtful and where we don't know," he said. "But I think everyone has to understand the limits of the art here, the limits of the science."

Hayden said he would be a fierce protector of the CIA's independence, a concern for many lawmakers who worry that Hayden's military status might make him vulnerable to influence from what Democratic Maryland Sen. Barbara A. Mikulski called "this power grab" by the Pentagon, which has increasingly tried to exert influence within the civilian intelligence community.

Answering questions from several senators, Hayden repeatedly said that as director he would report to National Intelligence Director John D. Negroponte, as he does now, and not to Secretary of Defense Donald H. Rumsfeld.

"I'm not in the chain of command now; I won't be in the chain of command there," Hayden said.

He did say, however, that he would be highly attuned to whether his Air Force uniform affected his ability to work at the agency.

"If I find that this gets in the way of that, I'll make the right decision," Hayden said.

Large parts of the hearing focused on the NSA's surveillance program, which is highly classified.

Hayden said he met with administration officials after the Sept. 11 attacks to tell them what was "technically possible," then discussed ways to make that happen legally. That conversation, he said, resulted in an order from Bush authorizing the program.

The Sun reported yesterday, however, that among the options were programs NSA had tested successfully but chosen not to use. They included systems that could encrypt the identifying information of U.S. phone and e-mail records to better sift out terrorist suspects and prevent abuse of the program.

It is not clear whether those options, part of the ThinThread program, were presented to the White House in those early meetings on surveillance, intelligence officials said.

After the 2001 attacks, Hayden adopted one part of the Thin- Thread program. That component was a huge database that could analyze patterns of communications data, and it became the backbone of the surveillance program.

In adopting only one element of the program, NSA disabled the privacy and abuse protections, intelligence officials said.

Hayden indirectly acknowledged yesterday that he decided not to use the ThinThread program in 1999 and that the decision upset some at the NSA. But he said during the public segment of the hearing that he would not comment on the details of the program or why its privacy protections were not put to use within the warrantless surveillance program.

Hayden said that he had not read the Justice Department opinion laying out the legal rationale for the program but that he is convinced that it was lawful.

After Sept. 11, he said, he had to make "a personal decision" about how far to push the boundaries of his authority. After consulting with lawyers from the administration and his agency, Hayden said he decided that he "could not not do this."

Some committee members were not so sure, especially those who did not receive fuller details about the program until Wednesday.

Hayden briefed selected members of Congress between the fall of 2001 to December last year, when the first articles about the program hit the newspapers. Some members of the committee, and their House counterparts, were apprised of the full story this year.

"I used all the tools I had available to me to inform the other two branches of government," Hayden said.

Sen. Olympia J. Snowe, a Maine Republican, said the limited audience for the earlier briefings fell short of what the law requires and offered lawmakers nowhere to go with concerns because of the restrictions on discussing classified information.

"It is not enough for the executive branch to agree among themselves," she said.

Sen. Russ Feingold, a Wisconsin Democrat, said he came away from Wednesday's briefing "more convinced than ever ... that the program is illegal," and he questioned Hayden's vigorous defense of the NSA's work.

Asked whether there were other powers that he thought might be needed in the aftermath of Sept. 11, Hayden said he had no specific examples but that if there were decisions to be made, "I would consult my lawyers and my conscience, just as I did in 2001."

After the hearing, Feingold said his concerns about Hayden had not been allayed.

"I think we've got a real constitutional crisis here and, unfortunately, the nominee did not really back away from this," Feingold said. "That's a problem for me."

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